Clandestine IP treaty being drafted

Continuing from my previous post, it seems that certain developed countries have decided to take matters into their own hands. A controversial treaty is being drafted in secret by a group of wealthy countries. Late 2007 saw the beginning of this effort at creating new global standards for intellectual property rights spearheaded by United States, the European Commission, Japan, and Switzerland.

Cleverly named the “Anti-Counterfeiting Trade Agreement” (Note: it does not deal with money counterfeiting), the drafting committee quite noticeably does not include any leaders from developing countries, the interests of which are quite different from the countries currently drafting the ACTA. What’s more worrying is that the current draft allows for the ‘locking’ of this text once these negotiations are complete. Countries that are later ‘invited’ (read as ‘arm-twisted’) into joining the pact will not be able to re-negotiate the biased terms of the treaty. All these discussions are taking place behind closed doors, and with no official agendas/results on the talks released, the primary insight into its happenings is a leaked discussion paper. The leaked paper talks about international cooperation measures, enforcement measures and legal framework as the main provision category for ACTA.

A look into some of the provisions as mentioned in wikileaks:

“The agreement covers the copying of information or ideas in a wide variety of contexts. For example page three, paragraph one is a “Pirate Bay killer” clause designed to criminalize the non-profit facilitation of unauthorized information exchange on the internet. This clause would also negatively affect transparency and primary source journalism sites such as Wikileaks.
The document reveals a proposal for a multi-lateral trade agreement of strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods hiding behind the issue of false trademarks. If adopted, a treaty of this form would impose a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers, including perfunctionary disclosure of customer information. The proposal also bans “anti-circumvention” measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.”

Draconian provisions aside, the very existence of the ACTA is questionable. When the WIPO and WTO-TRIPS already exists, is there a need for this new treaty in the first place? Even if stronger laws need to be implemented, why ar’nt they being done through these forums? Our likely answer is that after having met with strong resistance in these forums in their initial attempts at implementing stronger IP protection, the ACTA countries have shifted their grievances to a forum which would guarantee them frictionless acceptance – a forum composed of only them! Thus bypassing WIPO and WTO completely and along with it, the concerns of developing countries as well.

Another danger of the ACTA is that while it is taking the form of a trade agreement, due to its binding nature, IP law itself is going to be affected. If signed, the treaty will have a direct impact on the domestic IP laws as signatory countries will need to conform with the treaty. Conforming with the treaty entails amending and making laws which can co-exist with the terms of the treaty. This leaves us with a scary thought – if this treaty is accepted, trade officials, mostly of the US/EU in this case (‘incidently’ heavily funded by intermediarary copyright aggregators), will indirectly be responsible for the IP law in countries all over the world.For more reading on this check IP justice white paper.

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